THEA NEY GENERAL
OF TEXAS
AUSTIN, TEXAS 78711
CRAWPORD c. MARTIN
October 3, 1967
AnORm OENERAX.
Hon. Joe Resweber Opinion NO. M-142
County Attorney
Harris County Re: Constitutionality of
Houston, Texas and construction of
certain provisions of
House Bill 78, Acts
60th Legislature, Regu-
lar Session, 1967, Chapter
Dear Mr. Resweber: 681, Page 1789.
You have requested our opinion as to whether Rarris
County is required to pay fees to the County Clerk of Harris
County in condemnation proceedings brought by Harris County.
All fees collected by the County Clerk are required to be paid
into the County Treasury "for account of the proper fund."
Article XVI, Section 61, Constitution of Texas. Wichita County
vs. Robinson, 155 Tex. 1, 276 S.W.2d 509 (1954). Thus, fees
collected by the County Clerk of Harris County will be deposited
into the Officers Salary Fund of Harris County, a part of the
General Fund of Harris County. Therefore, if Harris County is
required to pay fees, set out in House Bill 78, Acts 60th Legis-
lature, Regular Session, 1967, Chapter 681, Page 1789, Harris
County would be paying to itself such fees.
All county funds are constitutional funds. If only
the General Fund is involved, it would amount to a useless book-.
keeping entry in the General Fund. If other constitutional funds
are involved, such payment would amount to an invalid transfer
of constitutional funds. It is well settled in this State that
tax money raised ostensibly for one purpose cannot be used for
another purpose and therefore transfers of constitutional funds i
are in violation of Section 9 of Article VIII of the Constitution
of Texas. Carroll vs. Williams, 109 Tex. 155, 202 S.W. 504 (1919);
Ault vs. Hill County, 102 Tex. 335, 116 S.W. 359 (1909); Sanders
1920, no writ); Lamon vs.
~~~~~~~~~:~:~~~.~~s~~~:~~~~~~~~':'1948, no writ); First State
y 306 S.W.Zd 246 (Tex.Civ.App.,
1957, no writ.)
In view of the foregoing, it is our opinion that the
payment of fees in a condemnation proceeding by Harris County to
the Clerk of Harris County would amount to an unconstitutional
transfer of tax monies. Furthermore, such payments amount-to
- 661.
Hon. Joe Resweber, page 2(M-142)
bookkeeping transfers and would require unnecessary time, energy,
and labor by various county officials. As youpointed out in
your request, in the construction of statutes, it is to be pre-
sumed that.the Legislature did not intend to require an absurd,
foolish, unreasonable or useless thing. Floydada Independent
School District vs. Shipley, 238 S.W. 1026 (Tex.Civ.App., 1922,
affirmed 250 S.W. 159, 1923). Therefore, you are advised that
fees cannot legally be paid to the County Clerk of Harris County
by Harris County.
With regard to other governmental agencies in condem-
nation proceedings, we agree with you that it is established that
a condemnation, in its initial stage, is not a cause, action, or
suit in a Court, but is an administrative proceeding. Henderson
vs. Turnpike Authority,,308 S.W.2d 199 (Tex.Civ.App., 1951,
error ref.); Denton County vs. Brammer, 361 S.W.Zd 198 (Tex.Sup.
1962). Therefore, fees which are payable by other condemners
are not payable until an objection is filed by the condemnor or
a judgment is entered.
SUMMARY
_------
Fees cannot be paid by a county to its own
County Clerk. In condemnation proceedings where
the condemnor is other than the county in which
the condemnation proceeding is filed, fees pay-
able by a condemnor other than the county are not
due and payable until an objection is filed by the
condemnor or a judgment is entered.
Y4 rs very truly,
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Pat Bailey
John Grace
Sam Kelly
- 662-
.
Hon. Joe Resweber, page 3(M-142)
A. J. Carubbi, Jr.
Staff Legal Assistant
- 663-